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DEPUTY DPP DORCAS ODOUR DROPPED FROM NCAJ.

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Dorcas Oduor, the secretary of prosecution during judges interviews.

BY SAM ALFAN.

Chief Justice Martha Koome has made changes to the National Council on Administration of Justice after dropping Dorcas Oduor, the secretary of prosecution from the outfit.

In a gazette notice, CJ Koome revoked the appointment of Oduor, who was appointed to the NCAJ on February 18th last year.

In the changes, Justice Koome named the Ethics and Anti-Corruption Commission CEO Twalib Mbarak , High Court Judge Prof. Nixon Sifuna, Milimani Anti-Corruption Chief Magistrate Thomas Nzioki, Amos Omuga from National Police Service and veteran state Counsel Adow Mohamed from Asset Recovery Agency(ARA) to be members of NCAJ.

Justice Sifuna has received a lot of praise in the recent past over his precedent-setting rulings and judgements.

The High Court judge was also named the joint winner one of the 2022 Accountability in Action Awards, which is sponsored by the African Development Bank (AfDB) under the Independent Recourse Mechanism (IRM).

The award recognizes individuals and organisations that have made outstanding contributions to accountability during their engagement in the IRM’s complaints-handling process. Judge Sifuna is also an environmentalist.

Senior State Counsel Adow Mohamed who is from office of attorney General now attached at Asset Recovery Agency has also achieved a lot in his career.

He managed to win against British American tobacco from High Court all the way to Supreme Court in a case the tobacco manufacturer challenging implementation of smoking regulations.

Supreme Court upheld sanctions imposed by the Government on cigarette manufacturers and importers to safeguard public health are justified after Adow unleashed a strong opposition against BAT appeal.

He has argued many matters in the high court and secured various Victory for top legal office in the country.

Chief Magistrate Nzioki has been handling key corruption cases before anti-corruption court.

Amuga is an assistant Inspector General and director of legal services at the National Police Service.

REPRIEVE TO FORMER JUDGE AND PARTNER IN THEFT CLAIMS.

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Robert Mugo Mutitu before court.

BY SAM ALFAN .

A former judge and his law firm partner have been handed a reprieve after the prosecution withdrew charges of stealing over Sh6 million from a client.

The office of the Director of Public Prosecution withdrew the charges against Robert Mugo Mutitu and his partner John Njoroge Thiong’o under section 87 of the criminal procedure code.

Milimani Senior Principal Magistrate Benard Ochoi allowed the DPP’s application to withdraw charges.

The complaint was filed by Jane Wangui Wahome.

She claimed that the two lawyers stole Sh6,850,000 from her in an offence they allegedly committed on diverse dates between April 22 and May 19, 2021 in Nairobi.

The charge sheet produced in court stated that Mutitu and Thiong’o conspired to steal the money, which the client had paid for the purchase of a piece of land.

Mutitu who was axed from the Judiciary in 2003, in a purge that saw 23 judges and scores of magistrates removed from the bench over allegations of corruption.

BLOW TO SAFARICOM AS COURT DECLINES TO SUSPEND INTELLECTUAL PROPERTY CASE.

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Safaricom Shop at Central Business District(CBD)./PHOTO BY S.A.N.

BY SAM ALFAN .

Mobile operator Safaricom has suffered a major blow after the High Court declined to suspend the hearing of a petition filed by a Kenyan who has sued the telco in a case over intellectual property.

Justice Josephine Mong’are dismissed the application by Safaricom, seeking the suspension of the petition filed by Peter Muoki, pending appeal against the court’s decision directing the company to furnish him with a number of documents he intends to use in the case.

The judge had in June directed Safaricom to furnish the petitioner with a letter it sent to Huawei Technologies (Kenya) Company Limited, instructing the latter to propose a solution for Parent Child Control product functionality under M-PESA platform.

Also to be produced are documents relating to M-pesa parents child control and an application by Safaricom to Central Bank of Kenya seeking approval.

“In conclusion, I find and hold that the application by the Safaricom PLc and Huawei Technologies (Kenya) company ltd has no merit and is hereby dismissed,” ruled Justice Mongare.

Justice Mongare ruled that she was not persuaded that Safaricom has an arguable appeal with grounds that merit serious judicial consideration.

“I find and hold that Safaricom PLc is not deserving of the leave sought to file an appeal against the order of this court of 26th June 2023,” observed the judge.

The court had ordered Safaricom and Huawei Technologies Kenya to produce certified copies of an application by Safaricom to CBK, seeking approval of MPESA-Child Control product and MPESA Parent Child Control product/functionality approval.

The court had further ordered the company to produce original emails from Dennis Ndege Maari addressed to Caroline Njagua, Peter Mativo, Mazhisheng dated 2020.9.21 1508 hours. and original emails from Calimiao to Peter Mativo, Dennis Ndege Maari sent on 22 September 2020 1417 hours.

The documents were to be produced in court within fourteen days of the ruling, failure to which the Safaricom’s statement of defence would be struck out with costs.

Safaricom was aggrieved by the orders and sought to stay the ruling and the proceedings, pending appeal.

Muoki opposed the application and submitted that the documents sought are key and necessary in allowing them to canvass and present their case against Safaricom PLc and Huawei Technologies (Kenya) ltd.

He further said Safaricom did not demonstrate what kind of loss they shall suffer if application is disallowed.

Muoki and Beluga ltd further argued that the intended appeal is frivolous and an attempt to delay the matter further as Safaricom PLc is not interested in having the matter finalized.

CITY BUSINESSMAN ODUK DENY DEFRAUDING FOREIGNER MILLIONS IN SH13.5 BILLIONS DEAL.

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Edwin Ochieng Oduk appeared before Kibera court where he denied several counts fraud-related charges./PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

A Nairobi resident has been charged with obtaining Sh8.9 through fraudulent means in Sh 13.5 billion gold scam.

Edwin Ochieng Oduk appeared before Kibera Senior Principal Magistrate Monica Maroro and denied several counts fraud-related charges.

The first count stated that Oduk obtained Sh2.4 million from William Tuil by claiming that he was in a position to pay for the insurance of a consignment of four boxes containing Sh12.5 million held at th Jomo Kenyatta International Airport (JKIA).

The court heard that he committed the offence on diverse dates between July 22, 2022 and August 10, 2020 in Nairobi. It is alleged that he committed the offence jointly with others not before court, with intent to defraud.

He denied a second count of obtaining Sh1.75 million purporting that he was in a position to hire a private jet from JKIA to Kigali, Rwanda to deliver the consignment containing the money.

The prosecution alleged that Oduk also obtained Sh 4,409,160 from William by purporting that the money were meant to pay for Kenya Revenue custom documents and taxes of the consignment.

He is also alleged to have forged a Kenya Airways waybill document.

The court directed him to deposit cash bail of Sh800,000 to secure his release.

CITY LAWYER SLAPS EPRA WITH SH73 MILLION LEGAL FEE.

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Energy & Petroleum Regulatory Authority Director General Daniel Kiptoo.

BY SAM ALFAN .

Energy and Petroleum Regulatory Authority (EPRA) has been slapped with a fee note of more than Sh73 million by a city law firm.

S.M. Kilonzo & Associates Advocates filed the bill of Sh73.1 million against the petroleum regulator for defending the authority in a case between Kenya Petroleum Refineries Ltd and oil marketer Total Kenya.

EPRA was an interested party in the case as KPRL sought to block the Sh2.3 billion suit from being handled by arbitration.

The law firm moved to court after failing to get a response from the regulator despite several reminders through veteran lawyer Wambua Kilonzo.

Justice Joseph Sergon dismissed the application by the state corporation saying the company failed to submit substantial evidence to show why the matter shouldn’t be handled through arbitration.

Through a letter dated 12th January 2017, EPRA company secretary Peter Muhenia instructed Kilonzo law firm to act for the commission in matters being adjudicated in different courts where the lawyer acted as instructed.

“In view of the subject matter being adjudicated in different forum it would to the interest of ERC that we are made party to the proceedings at the High Court. Kindly proceed to make the necessary application to enable HRC be party to the proceedings,” States one of the letters between the commission and the law firm.

Despite the law firm sending note fee to EPRA, the regulatory body under Director General Daniel Kiptoo haven’t responded to the law firm.

Failure to get response from their client EPRA, the Law firm on a letter dated 3rd of August sent another letter to the Commission seeking for the settlement of the legal fee.

“Given that there has been no response to the same to date, three months down the line, kindly note that we shall proceed to file our Bill of Cost within the next seven days if settlement of our Fee Note shall not have been done by then,” letter to EPRA state.

DG Kiptoo is facing contempt proceedings in a different case, for disobeying a court order by adjusting fuel prices despite being stopped by the High Court in a case filed by Busia Senator Okiya Omtatah challenging the Finance Act,2023.

ODM’S MOVE TO EXPEL REBEL MPS STOPPED BY TRIBUNAL.

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President William Ruto with ODM rebels Kisumu Senator Tom Ojienda and MPs Elisha Odhiambo (Gem) and Felix ‘Jalang’o’ Odiwuor (Lang’ata) at State House in Nairobi.

BY SAM ALFAN .

A bid by Raila Odinga’s ODM party to expel several MPs from the opposition outfit for associating with President William Ruto has suffered a setback after the move was stopped by a tribunal.

The Political Parties Disputes Tribunal slammed the breaks, albeit temporarily on the ODM from expelling among others Kisumu Senator Tom Ojienda and MPs Elisha Odhiambo (Gem) and Felix ‘Jalang’o’ Odiwuor (Lang’ata) from the party.

The MPs rushed to the tribunal challenging their expulsion over allegations of violating the party’s constitution.

“In the interim and pending the hearing and determination of this Application, this Honourable Tribunal hereby issues interim conservatory orders staying the implementation and/or execution of the decision of the 1st Respondent to expel the Complainant/Applicants, from the Orange Democratic Movement Party,” PPDT chairperson Desma Nungo ruled.

The court directed that legislators to serve the application on the party within two days. 

The case will be mentioned on September 21 to check on compliance and for further directions.

Ojienda, Odhiambo and Jalang’o were expelled last Wednesday alongside MPs Caroli Omondi (Suba South) and Gideon Ochanda (Bondo).

In court documents, the three states that they were surprised on September 6, 2023, to hear of their expulsion from ODM yet they were not invited for any disciplinary committee.

They said the ODM party issued a presser to the public that the National Executive Committee of the party had passed a resolution to adopt the recommendations of the ODM Disciplinary Committee to expel and deregister them as members.

“This notification of expulsion and deregistration from the party is shocking to the complainants because they were not given a chance to be heard on the subject complaints, neither was he given an opportunity to defend himself nor informed or notified of any decision and reasons as to why the 1st Respondent’s National Executive Committee has taken such a draconian measure”, the court documents read.

They claim the entire disciplinary proceedings preceding the action of the party were tempered by illegalities and unconstitutionality in that the entire process does not meet the trammels of law set by the Political parties Act, the Constitution of Kenya, ODM Disciplinary Rules and the ODM constitution.

“Should the office of the registrar of political parties (2nd Respondent) act on the illegal and unprocedural decision of the 1st Respondent to expel the Complainants, they will be greatly prejudiced and that their rights would be violated through a choreographed disciplinary process that was flawed, biased and unprocedural from the beginning to the end, they argue.

While expelling them, the NEC accused the MPs of violating ODM’s constitution and the Political Parties Act 2011 by openly associating with and supporting activities of a rival political outfit, as well as opposing lawful decisions made by party organs.

WIN FOR TOTAL KENYA AS HIGH COURT REFUSES TO HEAR MULTI BILLION SUIT.

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Kenya Petroleum Refineries Limited (KPRL) .

BY SAM ALFAN.

Kenya Petroleum Refineries Limited (KPRL) has failed in its bid to stop a Sh2.3 billion dispute between it and an oil marketer from being referred for arbitration.

Justice Joseph Sergon dismissed the application by the state corporation saying the company failed to submit substantial evidence to show why the matter shouldn’t be handled through arbitration.

“Upon perusal of the record this court notes that KPRL did not present any substantial evidence that is in line with the Arbitration Act that would necessitate this court to interfere with the Arbitration that has already begun,” ruled the judge.

Energy Regulatory Commission participated in the matter as interested party through veteran lawyer Wambua Kilonzo.

KPRL moved to court seeking to declare that the dispute between it and Total Kenya is no longer subject to arbitration.

The corporation urged the court to order that Total Kenya fully and effectually waived the right to refer the dispute to arbitration pursuant to a processing agreement signed by the parties.

The company further sought the appointment of Kyalo Mbonu as the sole arbitrator be set aside pursuant to section 12 (5) of the Arbitration Act.

In a supporting affidavit of Charles Nguyai, KPRL argued that the company and Total Kenya entered into the processing agreement dated 17th June 1966 for the processing of feed stocks by the applicant for the respondent.

Pursuant to the agreement the parties were required to refer to any dispute arising between them to arbitration.

Sometime in March 2013 however, a dispute arose with regard to oil yield shifts and notwithstanding the said agreement, Total Kenya as a member of the Oil Markets Companies (OMC’s) and the company agreed to refer and did refer the dispute to the Energy Regulatory Commission (ERC) for adjudication.

A decision by the ERC was rendered on 19th April 2016 and published in accordance with the requirements of Section 25 of the Energy Act.

Total Kenya as part of the OMC’s appealed the said decision to the Energy Tribunal under section 26 of the Energy Act.

However, Yotal Kenya sought to refer the dispute to arbitration, notwithstanding the said appeal process.

By virtue of section 25 (2) of the Energy Act the decision of the ERC rendered on 19/4/2016 upon gazetement became effective and binding on all the parties.

In having elected the ERC as the forum in which to agitate their claim Total Kenya cannot now turn to arbitration.

Total Kenya opposed the case and stated in a replying affidavit of Boniface Abala that under the Arbitration Act the appointment of an arbitrator and the jurisdiction of an arbitrator are dealt with separately.

Section 12 refers to appointment whereas section 17 refers to the jurisdiction therefore the issue as to whether the parties have waived the right to arbitration is a question that goes to the heart of the jurisdiction of the arbitrator which is reserved for determination by the arbitrator.

However, it is Total’s position that there was no waiver as alleged and that the arbitration clause contained in the agreement was clear and equivocal and continues to bind the parties.

The company in their submissions argued that the principle of Sub judice prevents the continuation of proceedings in a matter in which the issue tried is also directly and substantially in issue in a previously instituted suit of proceeding.

The company argued the whole decision of the Energy Regulatory Commission on the question of yield shift cost recovery is a determination of a matter in issue between it and Total and therefore a matter which was directly in issue in a previously instituted suit between it and Total.

TATU CITY CLEARED TO PROCEED WITH DEVELOPMENT PLANS AS COURT LIFTS ORDER.

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Tatu City in Ruiu.

BY SAM ALFAN .

Tatu City company is now free to develop part of contested land after the High Court lifted an order obtained in July by a firm claiming ownership of the parcel.

Justice Josephine Mongare lifted the injunction obtained by Dubai Gems from a Kiambu court saying the company failed to establish why the injunction should remain in force.

“The Tatu City’s application of 17th July 2023 is successful,” ruled the judge.

The judge further stated that after considering and evaluating the material placed before her, she was not satisfied that the company has an outright claim to membership of the Tatu City.

The judge said that the route to membership is convoluted through an intricate and complex web of transactions and will require to be established with evidence that can be tested through examination of the material upon which the company places reliance.

“It is in my view that this is not something that the court can determine at an interlocutory stage and without conducting a full hearing of the case herein” the judge said.

The judge added, “I am therefore not persuaded that the Plaintiff has established a prima facie case to warrant the grant of the said orders sought,” ruled the judge while dismissing the application by Dubai Gems ltd.

Dubai Gems ltd had claimed that by virtue of a deed of transfer from one Stephen Mbugua Mwagiru whom by virtue of a power of attorney from one Ettiene Deblar, owns a 4 percent shareholding at Tatu City.

Tatu city through veteran lawyer Ahmednasir Abdullahi told the court Dubai Gems ltd had no single share in multi billion special economic zone

Tatu City provided a CR12 to demonstrate that the said Ettiene Deblar is not a shareholder of Tatu city and therefore has no shares to transfer to Dubai Gems ltd or donate to any other person.

Dubai Gems obtained the order on 13 July 2023 stopping Tatu City and Cedar IV ltd from undertaking any dealings on the land comprising of 996.6 hectares of the land, which Tatu City maintains is the absolute owner.

Tatu City Limited and Cedar IV limited then moved to court to lift the order stopping them from carrying out development on some part of the expansive land.

The court heard that the suit property measures 2,462.5 acres and is worth over Sh123 billion and the injunction will be catastrophic for Tatu City who uses the proceeds of the sale to repay colossal loans it borrowed offshore.

The court further heard that Dubai Gems ltd and Tatu City are total strangers and have no legal relationship whatsoever and the company is not a member, a shareholder or director of Tatu Citys’ companies.

“He is unknown to Tatu City and Dubai Gems ltd has no cause of action against the Tatu City and has no relationship and never interacted with Dubai Gems ltd in any way. Being “total strangers” is not strong enough to describe their strangeness to one another.

Ahmednasir added that it is legally inconceivable in the absence of any legal dealing and relationship between Dubai Gems ltd and Tatu city for the company to establish a prima facie case with a probability of success and obtain an ex parte order stopping the sole legal and registered proprietor of the suit property from any dealings relating to the same

“That a court of equity cannot injunct the owner of a property from exercising his property rights and that in a dispute over ownership of a company between shareholders the property rights of the company are not in play for such property is solely owned by the company and cannot be the subject of litigation between the shareholders of the company,” Ahmednasir told the judge.

He dismissed Dubai Gems adding that the company’s entire claim is based on agreement between it and one Stephen Mbugua Mwagiru dated 16th March 2023 in which Dubai Gems allegedly bought without any consideration certain shares Mwagiru held in a company called Blacknight Holdings.

Blacknight Holdings, he said, is not a member, shareholder or director of Tatu city and are total strangers.

“A stranger cannot come to a court of equity and obtain an injunction in the circumstances Dubai Gems ltd did,” Ahmednasir told the court.

CITY LAWYER CHALLENGES APPOINTMENT OF REGULATOR’S CHAIRPERSON.

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Dr. Charles Githua Githinji Chairperson of the Pharmacy and Poisons Board.

BY SAM ALFAN .

City lawyer Apollo Mboya has moved to court seeking suspension of Dr Charles Githinji as chairperson of the Pharmacy and Poisons Board.

In a suit filed at the High Court, the lawyer wants the court to suspend the appointment made on January 20, 2023 appointing Dr. Githinji the Chairperson of the board, pending hearing and determination of the case.

Justice Mugure Thande directed the lawyer to serve Dr Githinji and the Board and slated the case for mention on November 18.

Mboya claims in the court documents that Dr Githinji was convicted by the Kenya Medical Practitioners and Dentist Council (KMPDC) for alleged negligence and ordered to pay Sh27,000.

The lawyer said the medic was accused of gross negligence as a pharmacist, a move that contributed to the death of a patient.

Dr Githinji was allegedly accused of failing to take the history of the patient and which led to improper diagnosis and inappropriate prescription of Halfan and masquerading as a medical practitioner, engaged in diagnostic and curative services.

He adds that the decision of KMPDC was affirmed by the High Court in the judgment delivered on May 29, 2019, where Dr Githinji was slapped with general damages of Sh1.05 million.

“As a public Officer, Dr. Githinji is required to be compliant to the values and principles of public service provided in Article 232 of the Constitution of Kenya including high standards of professional ethics. In addition, as a public officer is required to uphold professionalism as provided in the Public Officers Ethics Act,” says lawyer Mboya in his court documents.

Mboya said in the court papers that the Pharmacy and Poisons Board is a critical institution that ensures the safety, efficacy, and quality of pharmaceutical products reaching the public.

This, he added, is in fulfilment of the right to health provided in Article 43 (1) (a) of the Constitution that guarantees every person the right to the highest attainable standard of health, which includes the right to health care services.

He said being at the helm of the board, the chairperson will be talked with regulating the Practice of Pharmacy and the Manufacture and Trade in drugs and poisons, including eliminating unqualified individuals and quacks from the pharmaceutical field safeguarding the profession’s integrity and protecting the public from potential harm.

“As the Chairperson of the Pharmacy and Poisons Board, Dr Githinji is required to provide overall leadership to the Board, play a key role in setting the agenda for the Board meetings and guide the Boards’s decision- making process,” says lawyer Mboya.

The city lawyer adds that it is a contradiction that a Chairperson of the regulatory body has himself been convicted for gross negligence, for acting beyond his calling as a pharmacist that contributed to the death of a patient and for masquerading as a medical practitioner.

He further states Dr Githinji breached the code of ethics of his professional association, the Kenya Medical Practitioners and Dentist Council.

“Dr. Githinji’s continued stay in the office endangers the rights and wellbeing of the public to the fundamental right in Article 43 (1) (a) of the Constitution that guarantees every person the right to the highest attainable standard of health,” he said.

Before moving to court, Mboya had written to Dr. Githinji seeking his immediate resignation.

WOMAN DENIES DEFRAUDING KNH.

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Maureen Martha Onguko before Milimani Magistrate court./PHOTO BY IRENE ONYANGO

BY IRENE ONYANGO.

A woman has been charged with conspiracy to defraud Kenyatta National Hospital of over Sh40 million.

Maureen Martha Onguko appeared before Milimani Senior Principal Magistrate Esther Kimilu and denied the charge.

The charge against her was that she conspired with others not before court to defraud KNH of Sh 40,666,355 by falsely pretending that she was the owner of Noble Gases International Limited.

It is alleged that she committed the offence between June 12, 2023 at Fist Community Bank, Mihrab Branch, situated at Mihrab building within Nairobi County.

She was further accused of obtaining Sh5.5 million from KNH on May 18 this year at First Community Bank after presenting herself as the owner of Noble Gases ltd.

The woman also denied stealing the same amount from KNH in an alternative count after forging a purchase order.

The court will rule on September 11 on her bail application.

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